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Chronicle of a Death Foretold

Of course, the Interwebs are all abuzz with the news that the Directorate of Defense Trade Controls (“DDTC”) settled the Defense Distributed case as if that were somehow remarkable. Of course, it was about as remarkable as 100 degree days in DC in August or the All Star Game being a pointless, mind-numbing bore. DDTC’s position in this case was on life support, if not already dead, since last May when DDTC and BIS finally announced export control reform which would result in the transfer of most firearms and related technical data, including the types of firearms described in the 3-D printing plans at issue in the case, from the jurisdiction of DDTC to that of the Bureau of Industry and Security (“BIS”).

It is no secret that BIS and DDTC have radically different ideas about the consequences of putting something of the Internet. As far as DDTC is concerned, putting anything of the Internet is an export of that item to every foreign country with access to the Internet, i.e., everywhere but the outer reaches of Mongolia. BIS, on the other hand, takes the position that publication on the Internet means that an item is no longer subject to export controls. As BIS said in its proposed notice of rulemaking:

[I]f a gun manufacturer posts a firearm’s operation and maintenance manual on the Internet, making it publicly available to anyone interested in accessing it and without restrictions on further dissemination (i.e., unlimited distribution), the operation and maintenance information included in that published operation and maintenance manual would no longer be “subject to the EAR.”

So once the Category I transition is complete, the fat tenor has sung and the game is over.

DDTC, of course, could have waited until the last notes of Nessun Dorma, but instead agreed to move ahead. To do that before the transition of the firearms in question to BIS was complete, there are several housekeeping matters that the settlement agreement needed to address. First, DDTC agreed to continue with the announced proposed rules and to adopt a final rule that would remove the plans at issue from Category I of the USML. Second, DDTC would announce a temporary modification of the rules to exempt the plans prior to the transition from the USML to the Commerce Control List becoming effective. Third, DDTC agreed to issue a letter saying that the plans had been approved for public release — something not really necessary in light of the temporary modification of the rules to exempt the plans. Fourth, an acknowledgment that the letter permitted people to do whatever they wanted with those plans — again something not really necessary in light of the temporary modification and the letter itself.

What comes as a surprise to me was not that DDTC dropped the case, or that it did so before the guns at issue were removed from the USML, but that it agreed to fork over $39,581 to the plaintiffs. Granted that’s not a huge sum. Still, DDTC has not conceded that its position that putting USML technical data on the Internet is an export is wrong. Indeed, that will continue to be the case for items remaining on the USML. Well, I guess lawyers have to eat too.